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AJOY KUMAR MUKHERJEE
Bijan Kumar Ghosh – Appellant
Versus
Swapan Mondal – Respondent
| Table of Content |
|---|
| 1. background of property dispute (Para 1 , 2) |
| 2. questions of law on limitation for pre-emption (Para 5 , 11) |
| 3. court's analysis on pre-emption applications (Para 6 , 7 , 9 , 10 , 12 , 13 , 14 , 19 , 20) |
| 4. conditions for applicability of section 4 of the partition act (Para 8 , 15 , 18) |
| 5. final order dismissing the appeal (Para 21) |
JUDGMENT :
Ajoy Kumar Mukherjee, J.
1. This appeal has been preferred against Judgement and order dated 24th April 2014 passed by Learned Additional District Judge, 5th court Howrah, in Title Appeal no 152 of 2012, which was preferred against judgement and decree dated 28.08.2012 passed by Civil Judge (Sr.Division) 2nd court, Howrah in Title Suit no 25 of 1998.
2. Brief background of the present case needs to be stated at the outset. The property in dispute comprising of dwelling house over land measuring about 2 katha 7 chattak 20 sq ft, known as 6/2, Asutosh Mukherjee Lane, originally belonged to one Bhola Nath Majilya who during his lifetime executed a registered deed of “Nirupan Patra” on 10th July 1985, by which he settled the said dwelling house in favour of his three sons namely, Subuddhi Bhajan Majilya, Harekrishna Majilya and Debnara
The right of pre-emption under the Partition Act can be invoked at any stage of a pending partition suit, irrespective of the limitation period under the Limitation Act.
The right of pre-emption under Section 4 of the Partition Act is valid throughout the pendency of partition proceedings, irrespective of limitations set by Article 97 of the Limitation Act.
Right to Pre-emption – Application for pre-emption under Section 4 of Partition Act can be made at any stage of partition suit so long entire partition decree is not satisfied – It is only when decre....
The character of a property as a dwelling house under the Partition Act is retained even with temporary use for commercial purposes, necessitating fresh adjudication of related applications.
The application under Section 4 of the Partition Act, 1893 read with Section 44 of the Transfer of Property Act, 1882 was not premature and should be reheard by the lower court.
The right of pre-emption under the Hindu Succession Act is contingent upon the property being that of a Hindu male who dies intestate, which was not applicable in this case.
Principle under Section 44 of the T.P.Act is that of subrogation or substitution. When one of several co-owners transfers her share, the transferee stands in the shoes of the transferor. This Section....
Point of Law : In terms of Section 4, the duty is cast upon Court to determine the valuation of the share of the stranger purchaser.
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